When couples marry or move in together when they’re young, they probably don’t need a prenuptial agreement or anything in writing about how they will share expenses and what will happen if they go their separate ways. They probably have little in savings or other assets and what they do accumulate, they will do so together.
But when they get together at a later age, the situation is very different. They come into the relationship with baggage or – since “baggage” can seem a bit pejorative – with some history. They’re more likely to have property and children. They may have spent decades working and saving to accumulate whatever they own and they may have done so with a partner who, if deceased, in effect has a claim on that property. That deceased partner may well roll over in her grave if what she helped create over decades goes to a new paramour of a few years or to his or her children rather than to her own children.
Further, the children may have expectations. Not only would they be unhappy if their anticipated inheritance went to this new person in their parent’s life, but if that new person is much younger than their parent, they might not be so happy about waiting many more years or decades for what ultimately comes to them.
Include Care Issues
Of course, in the United States, ownership is king — you can do what you want with your stuff, even give it to your new partner rather than your children. The problem is that this often happens unintentionally rather than intentionally. Without a plan, assets often end up owned by the survivor of a couple and passing to his or her family.
In addition to the issue of inheritance, there’s the one of incapacity and care. People in their 70s, 80s and 90s have a good chance of suffering physical or cognitive incapacity. When that happens, what’s already complicated can get even more complicated. Did the new partner sign on for better or worse or just for better? Is he or she ready to take on the care and expense of care for the ill spouse or partner? How will care be coordinated with that person’s children? Often in these situations communication becomes difficult leading to misunderstandings and conflict. At least some of this can be avoided if partners plan ahead and discuss what they would want to happen in the event of incapacity.
What a Written Agreement Accomplishes
In short, when older people get together it can be complicated. A prenuptial agreement in the event of marriage or a cohabitation agreement when there’s no marriage can help avoid later difficulties. Here’s some of what it can accomplish:
- It forces a discussion about financial and care issues. Without the necessity of putting plans in writing, people and relationships often drift. The act of putting an agreement in writing forces a conversation and discussion of these important issues.
- Brings out new issues. Putting pen to paper often makes people think of issues and details they would not consider otherwise.
- Aid to memory. No one’s memory is perfect and there’s more and more evidence that our memories are altered by subsequent events and influences. Looking at what’s in writing from years before may surprise the parties and clarify differing memories.
- Evidence of intent. Children often have a different idea of what’s right for a parent or what the parent may have intended than the parents themselves. Our actions and words can sometimes be ambiguous, permitting people to believe what they want to believe. Written evidence of what the parent had in mind may quiet down a child who is objecting to a plan when it can be shown the plan is consistent with the parent’s wishes.
- Undue influence protection. Whether it's a conniving partner or a controlling child, people in one's life can put pressure on us to agree to things we really don't want. Having an agreement in writing can protect against such pressure, at least to some extent.
It's Not Cast in Stone
Anyone entering into a prenuptial or cohabitation agreement should understand that it can always be modified. If it’s put in place when two people are moving in together, but they stay together for a long time, what was appropriate at the beginning may no longer make sense 15 years later. They should review their agreement periodically to make sure it still makes sense and adjust it as appropriate.